State v. Northcutt, No. 26271.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBurnett
Citation641 S.E.2d 873
PartiesThe STATE, Respondent v. Clinton Robert NORTHCUTT, Appellant.
Decision Date20 February 2007
Docket NumberNo. 26271.
641 S.E.2d 873
The STATE, Respondent
v.
Clinton Robert NORTHCUTT, Appellant.
No. 26271.
Supreme Court of South Carolina.
Heard October 17, 2006.
Decided February 20, 2007.
Rehearing Denied March 22, 2007.

[641 S.E.2d 876]

David I. Bruck and Robert E. Lominack, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of the South Carolina Office of the Attorney General, of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

Justice BURNETT:


Clinton Robert Northcutt (Appellant) was convicted of killing his infant daughter and sentenced to death. We reverse and remand for a new sentencing proceeding.

FACTUAL/PROCEDURAL BACKGROUND

Appellant, his wife, Angie, who was pregnant with their second child, and their four-month old daughter, Breanna, resided in Lexington County, South Carolina. In early January 2001, Ms. Northcutt threatened to leave Appellant, but he took her car keys and prevented her from doing so. Two days later, Appellant shook, squeezed, slapped, punched, bit, strangled, and beat his infant daughter to death in an apparent fit of rage when she would not stop crying.

Appellant fled the home and was arrested near Atlanta later that day. Ms. Northcutt returned home from work that evening and found Appellant's wedding ring lying on a table and a message on the answering machine in which Appellant told his wife the baby was dead and apologized for what he had done. He also told her he was leaving and going far away so he would no longer hurt anyone. Ms. Northcutt then found the baby's body in the crib, and called emergency personnel.

An autopsy revealed severe and extensive trauma to the child's body and significant bruising, internal hemorrhaging, and bone fractures indicative of shaken baby syndrome. According to the examining pathologist, more than one of the baby's injuries alone were potentially fatal. He estimated the injuries were inflicted over a seven to fifteen minute time frame, although it could have been as little as two to three minutes. He testified there were no old bruises or injuries on her body and that all injuries stemmed from this single event.

The jury found Appellant guilty of murder. In the sentencing phase the State introduced evidence in aggravation of punishment including: (1) suspensions and school vandalism by the Appellant when he was in middle school; (2) an incident, for which he served one year in the Department of Juvenile Justice (DJJ), in which Appellant brought a loaded handgun to school; and (3) three disciplinary infractions Appellant committed during his two-and-a-half years in pre-trial confinement. Appellant presented evidence in mitigation showing he suffered physical violence and emotional abuse at the hand of his alcoholic father who, at the time of Appellant's trial, was serving an eight-year prison sentence for sexually molesting Appellant's nine-year-old half-sister. Evidence also showed Appellant failed to receive help or treatment from the Department of Social Services (DSS), despite numerous child abuse complaints and injuries to Appellant from the time he was age five until age fourteen. The jury returned a death sentence.

ISSUES

I. Did the trial judge err in denying Appellant's request to submit homicide by child abuse as a lesser-included offense of murder?

II. Did the trial judge err in requiring Appellant to direct his expert witnesses

641 S.E.2d 877

to generate written reports for the prosecution?

III. Did the trial judge err in admitting evidence that the baby had suffered a broken leg at age ten-weeks while Appellant was removing her from a swing-seat, in the absence of any evidence that the injury was the result of child abuse?

IV. Did the trial judge err in admitting a letter from Ms. Northcutt to a defense social worker in which Ms. Northcutt stated she had "no sympathy" for Appellant?

V. Should Appellant have been permitted to introduce a letter to his wife expressing remorse for the death of their baby in response to the wife's testimony that Appellant's post-arrest phone calls to her had shown a lack of remorse and concern?

VI. Did the solicitor's closing argument so infect the jury's sentencing determination with passion and prejudice that it requires reversal of the death sentence?

STANDARD OF REVIEW

In criminal cases, this Court sits to review errors of law only. State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973). This Court is bound by the trial judge's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001).

LAW/ANALYSIS
I. Lesser-Included Offense

Appellant argues the trial judge erred in failing to submit homicide by child abuse as a lesser-included offense of the murder of a child under age twelve. We disagree.

The indictment charged Appellant with the crime of murder under S.C.Code Ann. § 16-3-20 (Supp.2005). The State submitted a notice of evidence in aggravation of punishment listing the following statutory aggravators: (1) the murder was committed in the commission of physical torture; and (2) the victim was a child eleven years of age or under.1

The test for determining whether a crime is a lesser included offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). If the lesser offense includes an element not included in greater offense, then the lesser offense is not included in the greater. Id.

Homicide by child abuse requires proof of the death of a child under age eleven during the commission of child abuse or neglect and the death occurs under circumstances showing extreme indifference to human life. S.C.Code Ann. § 16-3-85 (2003). Murder is the "killing of any person with malice aforethought, either express or implied." Id. § 16-3-10.

Homicide by child abuse is not a lesser included offense of murder. An element of homicide by child abuse, the death of a child under age eleven, is not an element of murder. Thus, the elements test has not been met. "A lesser offense is included in the greater only if each of its elements is always a necessary element of the greater offense." Knox v. State, 340 S.C. 81, 530 S.E.2d 887, overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005).2

When an offense fails to meet the elements test, this Court will nevertheless

641 S.E.2d 878

construe it as a lesser included offense if the offense has traditionally been considered a lesser included offense of the greater offense charged. State v. Burton, 356 S.C. 259, 264, 589 S.E.2d 6, 8 (2003) (citing State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002)). There is no historical antecedent suggesting homicide by child abuse is a lesser included offense of murder. Because homicide by child abuse is not a lesser included offense of murder under either the elements test or the historical antecedent test, the trial judge did not err in denying Appellant's request to submit homicide by child abuse as a lesser included offense of murder.

II. Expert Reports

Appellant argues the trial judge erred by requiring him to direct his expert witnesses to generate written reports for the benefit of the prosecution. We agree.

Before trial, the State submitted a motion requesting the names and addresses of all potential expert witnesses upon whom Appellant intended to rely to establish a mental defense or "any other mental deficiency." The State also requested Appellant "disclose the conclusions and reports of any and all potential expert witnesses reduced to writing and accompanied by any and all written materials and all other materials upon which such an opinion is based." The motion failed to cite any South Carolina rule governing pretrial discovery. The trial judge ordered Appellant to comply with the State's request, noting the "standard procedure has been to require both sides to produce reports."

Rule 5(b)(1)(B) of the South Carolina Rules of Criminal Procedure creates a right of reciprocal discovery:

If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the prosecution, the defendant, on request of the prosecution, shall permit the prosecution to inspect and copy any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to his testimony.

The rule requires the production of reports "within the possession" of the defense. However, it does not authorize the trial judge to require parties to generate written reports solely for the benefit of the opponent. Therefore, the trial judge erred in requiring Appellant to direct his expert witnesses to prepare written reports for the prosecution.

Determining the trial judge committed error is the first step of our analysis. Next we must determine whether the error was harmless. Franklin v. Catoe, 346 S.C. 563, 572, 552 S.E.2d 718, 723 (2001) ("the harmless error rule and a prejudice analysis are no strangers to cases involving the death penalty").

Whether an error is harmless depends on the circumstances of the particular case. No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. Error is harmless when it "could not reasonably have affected the result of the trial."

State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (citing State v. Key, 256 S.C. 90, 180 S.E.2d 888 (1971)).

Appellant argues the State was unfairly...

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41 practice notes
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...see justice done. The solicitor's closing argument must, of course, be based upon this principle." State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 880 When objection is timely made to improper remarks of counsel, the judge should rule on the objection, give a curative charge to the j......
  • State v. Blackwell, Appellate Case No. 2014-000610
    • United States
    • United States State Supreme Court of South Carolina
    • May 31, 2017
    ...as the evidence was cumulative to other evidence in the record of Blackwell's remorse. See State v. Northcutt , 372 S.C. 207, 221, 641 S.E.2d 873, 881 (2007) ("Although it was error to exclude the letter written from Appellant to Ms. Northcutt expressing remorse, the error was harmless. The......
  • The State v. Dickerson, No. 27048.
    • United States
    • United States State Supreme Court of South Carolina
    • November 17, 2011
    ...A defendant generally is entitled to rebut false impressions created by the State's evidence. See State v. Northcutt, 372 S.C. 207, 221, 641 S.E.2d 873, 880 (2007). Dickerson argues the false impression he is entitled to rebut is that Roper did not use cocaine. Even assuming Dr. Schandl's t......
  • Horry County v. Parbel, No. 4388.
    • United States
    • Court of Appeals of South Carolina
    • May 12, 2008
    ...is bound by the circuit court's factual findings unless they are clearly erroneous. State v. 662 S.E.2d 470 Northcutt, 372 S.C. 207, 215, 641 S.E.2d 873, 877 (2007); State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000); State v. Edwards, 374 S.C. 543, 553, 649 S.E.2d 112, 117......
  • Request a trial to view additional results
41 cases
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...see justice done. The solicitor's closing argument must, of course, be based upon this principle." State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 880 When objection is timely made to improper remarks of counsel, the judge should rule on the objection, give a curative charge to the j......
  • State v. Blackwell, Appellate Case No. 2014-000610
    • United States
    • United States State Supreme Court of South Carolina
    • May 31, 2017
    ...as the evidence was cumulative to other evidence in the record of Blackwell's remorse. See State v. Northcutt , 372 S.C. 207, 221, 641 S.E.2d 873, 881 (2007) ("Although it was error to exclude the letter written from Appellant to Ms. Northcutt expressing remorse, the error was harmless. The......
  • The State v. Dickerson, No. 27048.
    • United States
    • United States State Supreme Court of South Carolina
    • November 17, 2011
    ...A defendant generally is entitled to rebut false impressions created by the State's evidence. See State v. Northcutt, 372 S.C. 207, 221, 641 S.E.2d 873, 880 (2007). Dickerson argues the false impression he is entitled to rebut is that Roper did not use cocaine. Even assuming Dr. Schandl's t......
  • Horry County v. Parbel, No. 4388.
    • United States
    • Court of Appeals of South Carolina
    • May 12, 2008
    ...is bound by the circuit court's factual findings unless they are clearly erroneous. State v. 662 S.E.2d 470 Northcutt, 372 S.C. 207, 215, 641 S.E.2d 873, 877 (2007); State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000); State v. Edwards, 374 S.C. 543, 553, 649 S.E.2d 112, 117......
  • Request a trial to view additional results

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